Common questions about Affidavit of Indigency

How do I show the court I cannot afford my case?

You should not have to pay court costs if:

A. You get any of these benefits:

• Transitional Aid to Families with Dependent Children (TAFDC)
• Emergency Aid to Elderly, Disabled or Children (EAEDC)
• Supplemental Security Income (SSI)
• MassHealth
• Massachusetts Veterans Benefits Programs

B. Your household income is less than 125% of the current Federal Poverty Guidelines. Use the income your household gets after you subtract taxes. See current Federal Poverty Guidelines: mass.gov/doc/poverty-threshold-guidelines/download

C. You cannot pay court costs and pay for basic needs like food, shelter and clothing. If you have to choose between paying court costs or your basic needs, your income is low enough.

What costs will the court waive or get the state to pay?

If the court approves your Affidavit of Indigency, they can waive or get the state to pay two kinds of costs – Normal fees and costs and Extra fees and costs. Normal fees and costs and extra fees and costs are defined in MGL, Chapter 261, Section 27A.

The court cannot pay for your lawyer.

Normal fees and costs

Normal fees and costs are those that everyone must pay in the kind of case you are involved in. They include:

• Court filing fees and surcharges.
• Fees for photocopies, issuing, or certifying papers.
• Fees to a constable or sheriff for serving court papers.
• Fees for witness or document subpoenas.
• Costs of publishing notices for your case, and
• Appeal fees and surcharges.

Extra fees and costs

If you have costs and fees that are not considered normal costs and fees, they are “extra costs and fees.”

Examples of extra fees and costs are:

• Costs of expert testing, examination or testimony.
• Costs of taking a deposition of witnesses.
• Cost of requesting a recording of your hearing if you appeal your case.
• Appeal bonds

Is my Affidavit of Indigency confidential?

Yes. Your Affidavit of Indigency is confidential. The only people who can see it and the waiver you get from the court are you, your lawyer and the people the court pays, like:

• Authorized court personnel,
• The sheriff or constable that serves your notice, or
• The billing department at the newspaper if you need to publish your notice.

The court must have written permission to show or send copies of your forms to anyone else. If you need someone else to see your form or the fee waiver, write to the court. Name the person in your letter and give the court permission to show or send the person copies. Give a copy of your letter to the person you need to see these forms.

You do not have to give copies of your form or fee waiver to anyone else in your case.  If another party in the case wants to see these documents, they must get a court order.

How do I apply?

1. Complete the Affidavit of Indigency and sign it. See Fill out the Affidavit of Indigency on page 7.
2. File your Affidavit of Indigency with the clerk of the court.       
3. If you check Category (C) on the Affidavit, you also need to fill out the Supplement to Affidavit of Indigency.

What happens after I file my Affidavit of Indigency?

If you file other court papers at the same time as the Affidavit of Indigency, the clerk must file and date everything on the date you give them to the clerk. If you cannot afford to pay the court fees, the clerk must still file the papers on the same date.

• If you ask only for Normal costs on your Affidavit of Indigency, the clerk should approve it right away and give you a "fee waiver."  The clerk should only send your Affidavit to a judge if they think there is a problem with your application.
• If you ask for Extra costs, the clerk may approve your request. If they do not approve your request, the clerk must present it to a judge within 5 days. The judge may approve your request without a hearing.

The clerks must let you file other court papers even if the court does not approve your Affidavit of Indigency right away.

Do I have to give the clerk more information?

If you check Category A or B, the clerk should not ask you for more information. The clerk should not ask for proof about any public assistance you get or your income. They should not tell you to complete a Supplement to the Affidavit. And they should not send your Affidavit to a judge if you completed the form correctly.

If you check Category C, you must fill out the Supplement to the Affidavit. The clerk should only send your Affidavit to a judge if the clerk believes you may be able to pay the filing fee and still pay for food, shelter and clothing.

What can I do if the clerk asks me for more information?

If you check Category A or B, you can:

• Give the clerk a copy of the instructions to court staff on page 12 of this booklet. Tell them these instructions were written by the Supreme Judicial Court to help court staff.
• Ask the clerk to speak with their supervisor.
• Call your local legal aid office for help.
• Give the clerk the extra documents if you have them, but you do not have to.

Do I have to talk to a judge?

If a judge needs to talk to you about your Affidavit of Indigency, you will get a hearing.
A judge can only refuse to waive court fees if they hold a hearing. If you have a hearing, explain to the judge why you need documents or services for your case.

If you check Category C, and you have a hearing before a judge, bring proof of your income, like pay stubs, and bring proof of expenses like childcare costs, utility bills, car payments, and medical bills.

Can the court refuse to waive some of the costs?

The court may agree to waive some of the fees or have the state pay some, but not all, of the costs you request. But you must have a hearing before a judge first.

What if the court denies my Affidavit of Indigency?

If the clerk does not approve your application, the clerk must automatically send it to a judge to review.

If you disagree with a judge’s decision, you can "appeal" to a higher court to review the decision. The courts give short deadlines for appeals. You must act quickly. Ask the clerk's office about how to appeal and contact legal aid.